Role of the Committee
The Senate Standing Committee for the Scrutiny of Delegated Legislation assesses delegated legislation against a set of scrutiny principles that focus on compliance with statutory requirements, the protection of individual rights and liberties, and principles of parliamentary oversight.
The committee examines each legislative instrument subject to disallowance, disapproval or affirmative resolution of the Senate, as to whether:
(a) it is in accordance with its enabling Act and otherwise complies with all legislative requirements;
(b) it appears to be supported by a constitutional head of legislative power and is otherwise constitutionally valid;
(c) it makes rights, liberties, obligations or interests unduly dependent on insufficiently defined administrative powers;
(d) those likely to be affected by the instrument were adequately consulted in relation to it;
(e) its drafting is defective or unclear;
(f) it, and any document it incorporates, may be freely accessed and used;
(g) the accompanying explanatory material provides sufficient information to gain a clear understanding of the instrument;
(h) it trespasses unduly on personal rights and liberties;
(i) it unduly excludes, limits or fails to provide for independent review of decisions affecting rights, liberties, obligations or interests;
(j) it contains matters more appropriate for parliamentary enactment;
(k) in the case of an instrument exempt from sunsetting, it is appropriate for the instrument to be exempt from sunsetting;
(l) in the case of an instrument that amends or modifies the operation of primary legislation, or exempts persons or entities from the operation of primary legislation, the instrument is in force only for as long as is strictly necessary; and
(m) it complies with any other ground relating to the technical scrutiny of delegated legislation that the committee considers appropriate.
Senate standing order 23(4) also requires the committee to scrutinise each instrument to determine whether the attention of the Senate should be drawn to the instrument on the ground that it raises significant issues, or otherwise gives rise to issues that are likely to be of interest to the Senate.
Senate standing order 23(4A) provides that the committee may, for the purposes of reporting on its terms of reference, consider instruments made under the authority of Acts of the Parliament that are not subject to disallowance. For such instruments the committee may also consider whether it is appropriate for the instrument to be exempt from disallowance.
The committee meets regularly, in each sitting week of the Senate, and publishes the outcomes of its meetings in the Delegated Legislation Monitor.
Where an instrument raises a concern referable to the committee's scrutiny principles, the committee’s usual approach is to write to the relevant minister seeking further explanation or information, or seeking an undertaking for specific action to address the issue of concern. The committee, via its secretariat, may also seek additional information or clarification on a potential scrutiny concern from the relevant agency, before the committee escalates the matter to the minister.
The committee's scrutiny work is supported by processes for the registration, tabling and potential disallowance of legislative instruments, which are established by the Legislation Act 2003.
The committee generally seeks to conclude any matters within the period that an instrument is open to disallowance (which is usually within 15 sitting days of the instrument being tabled in the Senate).
The Disallowance Alert webpage lists all instruments subject to a notice of motion for disallowance (whether at the instigation of the committee or an individual senator or member). The progress and outcome of any such notice is also recorded.